Postal Telegraph Cable Co. v. Hulsey

• Court: Alabama Supreme Court
• Writing for the Court: HEAD, J.
• Citation: Postal Telegraph Cable Co. v. Hulsey, 115 Ala. 193, 22 So. 854 (Ala. 1897)
• Decision Date: 25 May 1897
• Parties: POSTAL TEL. CABLE CO. v. HULSEY.

22 So. 854

115 Ala. 193

POSTAL TEL. CABLE CO. v. HULSEY.

Supreme Court of Alabama

May 25, 1897

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Robert T. Hulsey against the Postal Telegraph Cable Company for personal injuries. Verdict for plaintiff. Defendant appeals. Reversed.

Robert T. Hulsey sued the Postal Telegraph Cable Company to recover damages for personal injuries suffered by him while in the employ of appellant as a tree chopper along appellant's right of way. The substance of the several counts of the complaint are sufficiently stated in the opinion. To the complaint the defendant interposed the following demurrer "Comes the defendant, and demurs to the complaint in this cause, and to each count thereof separately and severally, and sets down and assigns the following grounds of demurrer: (1) Said complaint, and each count thereof, fails to show or state any facts or circumstances of negligence on the part of defendant, or of any one in its employ. (2) Said complaint, and each count, fails to show any fact or circumstance which would render the defendant liable." This demurrer was overruled, and to this ruling the defendant duly excepted. The defendant pleaded the general issue and the following special pleas: "(2) The defendant, for further answer to the complaint, and the several counts thereof severally and separately, saith that the plaintiff was guilty of acts of negligence which contributed proximately to his alleged injuries, and is, therefore, not entitled to recover in this action. (3) The defendant, for further answer to the complaint, and to the several counts thereof severally and separately, saith that the plaintiff accepted a sum certain, to wit, fifty dollars, the amount of his medical bill, in full settlement of the damages alleged to have been suffered by him." The substance of the fourth plea and the plea unnumbered, setting up the defense of contributory negligence, is stated in the opinion. To the second plea the defendant demurred upon the grounds: (1) That the negligence of the plaintiff attempted to be set up in said plea was not sufficiently set out therein; (2) that the facts constituting contributory negligence, attempted to be set up in said plea, are not stated. This demurrer was sustained. There was demurrer interposed to the third and fourth pleas, which was overruled. To the fourth plea the plaintiff filed a general replication and a special replication, the substance of which is stated in the opinion. There was a demurrer to this replication, which was overruled.

Upon the trial of the cause it was shown that the plaintiff, at the time of the accident, was in the employ of the defendant engaged in cutting down trees along the defendant's telegraph line. In cutting down one of the trees, it lodged against another, and the plaintiff was instructed by Cobbs who was the defendant's superintendent, to cut down the tree against which it was lodged. In obedience to this instruction by Cobbs, the plaintiff, together with another employé, commenced to cut upon the tree, and when the tree which was lodged commenced to fall the plaintiff ran, and the tree fell on him, inflicting the injuries complained of. The plaintiff testified that he was paid $20 per month to work for the company. The defendant's counsel then asked the plaintiff the following question: "Did you save anything of that,-meaning the twenty dollars per month?" The plaintiff objected to this question upon the ground that it called for immaterial testimony. This objection was sustained, and the plaintiff duly excepted. Frank A. Cobbs, a witness for the defendant, testified that he was employed by the defendant as foreman or superintendent in overhauling and constructing the defendant's line of telegraph, and at the time of the accident was engaged in cutting down timber along the line; that when one of the trees, which had been cut down, lodged upon another, in instructing the plaintiff together with another employé, to cut down the tree upon which the other one had lodged, he instructed the said employés to cut out a path leading from the tree which was going to be cut down, in the opposite direction from that in which the tree lodged was likely to fall, and he cautioned them to run in the direction which the path was cut out, through the undergrowth; that, as the lodged tree commenced to fall, he hallooed and gave a signal to the plaintiff and the employé cutting upon the tree, and the plaintiff, instead of running in the direction in which the path had been cut, ran in the opposite direction, and the tree fell on him. This witness further testified that the plaintiff ran in the most dangerous direction he could have gone,-directly under the tree as it was falling,-and that, if he had run in the opposite direction, or had remained by the tree upon which he was cutting, he would not have been injured. Counsel asked the witness Cobbs the following question: "I will ask you, if your job does not depend upon showing that you are not at fault in this matter?" To this question the defendant objected. The court overruled the objection, and the defendant then and there duly excepted. For answer to this question the witness said: "Perhaps I thought so at that time, but I do not think so now. I do not think the company blames me for this now. They may have blamed me before I made an explanation of the matter, which I did last September." The witness further testified, in answer to other cross-questions, as follows: "I have tried to get the plaintiff not to bring suit. I have interested myself in the matter to some extent. I did this to ease my own mind and the company, too. I do not know that I will have to pay anything if recovery is had. I might have thought so at the time, but I do not think so now. I did keep a watch-out, and give notice in ample time for Mr. Hulsey to get out of the way. I feel a very deep interest in this case. I am partial to the company, and want it to gain this case. I came here from North Carolina as a witness. My expenses were paid, and I brought John Angel with me." On redirect examination the witness said: "I came here under the direction of the superintendent." The defendant's counsel asked the witness the following question: "What are the reasons for your interest now?" To this question the plaintiff's counsel objected, which objection was sustained by the court, and the defendant then and there duly excepted.

Upon the introduction of all the evidence the defendant requested the court to give to the jury the following charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury find from the evidence that Hulsey could have taken a course free from danger, but took the course most dangerous, he is not entitled to recover." (4) "In the absence of orders from Cobbs as to what direction Hulsey should run, it was the duty of Hulsey to run in the safe direction, if the jury find from the evidence there was a safe way to run." (5) "If the jury find from the evidence that Hulsey could have taken one or more directions, and could thereby have escaped, but failed to do so, but took a direction that was fraught with danger, and by so doing was hurt, he is not entitled to recover." (6) "If the jury believe from the evidence that Hulsey received notice by the screeching of the tree that the tree was about to fall at the same time Cobbs did, and if Hulsey, acting on the notice received by him, immediately started to run, and was hurt, then it cannot be said that Hulsey's failure to receive notice from Cobbs to run conduced proximately to his injury, and the plaintiff cannot recover." (12) "If the jury believe from the evidence that the cutting of the tree was a part of the duties of the plaintiff, and such cutting of the tree was in itself dangerous, or might probably result in injury to him, and that the plaintiff took upon himself this danger, and he was injured by the falling of the tree, then the plaintiff would not be entitled to recover." (13) "And if the jury believe from the evidence that the cutting of the tree, under the circumstances, was part of the duty of the plaintiff, and that such cutting of the tree might or would probably result in injury to him, and he undertook to aid in felling the tree upon the promise of defendant's foreman, or superintendent, or boss that he would watch, and warn him when to leave the tree, and plaintiff, while engaged in cutting, saw that said foreman, boss, or superintendent was engaged in conversation with Dr. Hendon, and was not performing his promise to watch and warn him, and the plaintiff then, with knowledge of the failure of said boss or superintendent to comply with his promise, continued the dangerous work of cutting down the tree, not relying on this said promise of said superintendent, and took the risk on himself, then the jury should find a verdict for defendant." The other rulings reviewed on the present appeal are sufficiently shown in the opinion. There were verdict and judgment for plaintiff assessing his damages at $10,000. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

J. M. Falkner, Ray Rushton, and J. J. Altman, for appellant.

John T. Shugart and Lane & White, for appellee.

HEAD J.

The demurrers to the complaint were all general, and, but for the institution of count No. 6, which states no cause of action at all, would have been properly overruled for that reason without considering any other. The demurrers go to each count separately. Count No. 6 shows that plaintiff was a fellow servant with Cobbs, who was charged with the negligence which caused the injury, and yet fails to bring the negligent conduct of...